K.B., et al v. Daleville City Board of Education

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-15518
Non-Argument Calendar
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D.C. Docket No. 1:11-cv-00362-WKW-TFM
KB, et al,
Plaintiff-Appellant,
versus
DALEVILLE CITY BOARD OF ED,
Defendant-Appellee.
___________________________
Appeal from the United States District Court
for the Middle District of Alabama
____________________________
(September 30, 2013)
Before MARTIN, JORDAN, and FAY, Circuit Judges.
PER CURIAM:
ES brought this action on behalf of her daughter, KB, against the Daleville
City Board of Education, alleging that KB was sexually harassed by the school
custodian, Alan Moody. The district court granted summary judgment on ES’ only
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remaining claim, which was based on Title IX of the Education Amendments of
1972, 20 U.S.C. § 1681 et. seq. ES now appeals, asserting that genuine issues of
material fact remain in dispute, and that summary judgment is therefore improper.
ES presented evidence that in 2009 Mr. Moody intentionally placed his
entire hand upon KB’s buttocks in the school cafeteria, and that Mr. Moody, after
being instructed to avoid contact with KB, violated that command by entering the
lunchroom during her lunch hour. At the summary judgment stage of proceedings,
we accept these facts and draw all reasonable inferences in the light most favorable
to ES. Nevertheless, because we conclude that a reasonable jury could not find
that the School Board acted with deliberate indifference to actual notice of sexual
harassment, as required under Title IX, we affirm.
I. STANDARD OF REVIEW
We review de novo the grant of summary judgment, applying the same legal
standards used by the district court. See Doe v. Sch. Bd. of Broward Cnty., Fla.,
604 F.3d 1248, 1253 (11th Cir.2010). These legal standards require that we view
the facts, and resolve all reasonable inferences, in favor of the non-moving party.
See Hawkins v. Sarasota County Sch. Bd., 322 F.3d 1279, 1280-81 (11th
Cir.2003). Summary judgment should only be granted if the record reveals that
there are no genuine issues of material fact and the movant is entitled to judgment
as a matter of law. Id.
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II. DISCUSSION
A. The School Board’s Liability under Title IX
Title IX provides that “[n]o person in the United States shall, on the basis of
sex, be excluded from participation in, be denied the benefits of, or be subjected to
discrimination under any education program or activity receiving Federal financial
assistance.” 20 U.S.C. § 1681(a). The Supreme Court has recognized an implied
right of action for monetary damages under Title IX for claims involving
intentional sexual discrimination, and has held that a teacher’s sexual harassment
of a student is actionable as discrimination under Title IX. See Franklin v.
Gwinnett Cnty. Pub. Sch., 502 U.S. 60, 75-76 (1992). In cases of sexual
harassment of a student by a teacher, our inquiry is governed by Gebser v. Lago
Vista Indep. Sch. Dist., 524 U.S. 274 (1998).
In Gebser, the Supreme Court made it clear that school district liability for
violations of Title IX will not lie in all cases of teacher-on-student sexual
harassment. “Title IX is predicated upon notice to an ‘appropriate person’ and an
opportunity to rectify any violation.” Id. at 290 (citing 20 U.S.C. § 1682).
Therefore, the Court explained, school districts cannot be held liable on a theory of
respondeat superior or even constructive notice. Id. at 285. Title IX liability only
arises where “an official of the school district who at minimum has authority to
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institute corrective measures on the district’s behalf has actual notice of, and is
deliberately indifferent to, the teacher’s misconduct.” Id. at 290.
Under Gebser, a Title IX plaintiff must identify a school district official with
the authority to take corrective measures in response to actual notice of sexual
harassment. See Floyd v. Waiters, 171 F.3d 1264, 1264 (11th Cir.1999). The
actual notice must be sufficient to alert that official to the possibility of the
plaintiff’s sexual harassment. See Gebser, 524 U.S. at 291. And, that official must
respond with deliberate indifference. See Sauls v. Pierce Cnty. Sch. Dist., 399 F.3d
1279, 1284 (11th Cir.2005).
B. The Employee/Student Victim Distinction
In applying the Gebser framework to ES’ Title IX claim, the district court
noted the following:
With one exception, all of Mr. Moody’s prior incidents of harassment
were directed at other employees, not students. While such a history,
if proven, could suggest Mr. Moody might harass an adult coworker,
ES has not explained why it should have put the School Board on
notice that Mr. Moody was a danger to students.
Doc. # 44 at 6 (emphasis in original). The district court went on to hold that “Mr.
Moody’s history of harassing coworkers is insufficient to meet the actual-notice
requirement of ES’ Title IX claim.” Id. In support of its holding, the district court
cited Hackett v. Fulton County Sch. Dist., 238 F. Supp. 2d 1330 (N.D. Ga. 2002), a
case which states, in pertinent part, as follows:
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[E]ven if the evidence could not be construed as placing the school
district on notice that there was a peculiar relationship between Kriel
[the teacher] and Green [another teacher], a teacher’s harassment of
another teacher can not be considered sufficient to put the principal on
notice that the teacher may be committing sexual misconduct against
students. Cf. Gebser, 524 U.S. at 291, 118 S.Ct. 1989 (the principal’s
notice of a teacher’s sexually suggestive comments to students in class
does not equate to notice that the teacher might be sexually molesting
a student).
Id. at 1349-50 (emphasis in original). Relying on Hackett, the district court
declined to consider many of Mr. Moody’s past instances of sexual harassment
which, according to ES, provided the School Board with actual notice of the
possibility of Mr. Moody’s later sexual assault of KB. The only prior complaints
of sexual harassment the district court considered in its actual notice inquiry were
the numerous reports of sexual leering against Mr. Moody over a period of a few
years immediately preceding his alleged sexual assault of KB.
We need not decide whether the district court’s notice rationale was sound.
Even if we consider the matters the district court excluded from its analysis, there
is insufficient evidence to create an issue of fact as to the issue of actual notice. To
explain why, we describe these past instances of Mr. Moody’s misconduct in
detail.
B. The First Complaint (1996) Against Mr. Moody - Kathy Davis
In 1996, Kathy Davis, a teacher, and Mr. Moody, a custodian, worked
together at Windham Elementary, a Daleville City school. Within her first year at
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Windham Elementary, Mr. Moody allegedly touched Ms. Davis’ buttocks three to
five times. Ms. Davis reported these incidents of sexual harassment at a single
meeting with Principal Julia Fulford. During their meeting, Ms. Davis said that
she initially believed the contact may have been accidental but, as the number of
incidents multiplied, she began to suspect something more sinister. Principal
Fulford asked Ms. Davis if she wanted to file a formal complaint, and Ms. Davis
indicated that she did not. She simply wanted the problem eliminated.
Other than Mr. Moody and Ms. Davis, there were no witnesses.
Immediately upon hearing that the alleged acts of sexual harassment/assault took
place while Mr. Moody and Ms. Davis were alone, Principle Fulford located Mr.
Moody and informed him that he was forbidden from entering Ms. Davis’
classroom without others present. Principal Fulford then made a written record of
the incident, placing a report in her office personnel file for further review should
another report of similar behavior surface in the future. Principal Fulford never
received another complaint regarding Mr. Moody for the remainder of her six-year
tenure as principal of Windham Elementary.
We first must consider whether Principal Fulford is an “appropriate person”
who “at minimum has authority to institute corrective measures on the district’s
behalf.” Gebser, 524 U.S. at 290. “The ultimate question of who is an appropriate
person is necessarily a fact-based inquiry because officials’ roles vary among
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school districts.” Doe, 604 F.3d at 1256. (internal quotation marks omitted). Like
the majority of our sister circuits, we have not hesitated in concluding that
principals, as the highest ranking school officials present at schools every day, are
“high enough on the chain of command to impute liability to the School Board.”
Id. at 1255. (internal quotation marks omitted). Principal Fulford is an
“appropriate person” under Title IX.
We next address whether Principal Fulford had actual notice of the
possibility that Mr. Moody might sexually harass a student like KB in the future.
Mr. Moody allegedly touched the buttocks of Ms. Davis, and also allegedly
touched the buttocks of KB. Each time he claimed his actions were inadvertent.
Each time the victim’s focus was elsewhere. And each time the identical act of
sexual harassment occurred in a location where no other witnesses were present.
These events are strikingly similar in nature and setting. The only difference
appears to be the age of the victim, which alone does not preclude a finding of
actual notice. A reasonable jury could find, we think, that Principal Fulford had
actual notice.
Finally, we decide whether there is sufficient evidence that Principal Fulford
acted with deliberate indifference to Mr. Moody’s misconduct to create a jury
issue. “Deliberate indifference is an exacting standard.” Doe, 604 F.3d at 1259.
School district officials will only be found deliberately indifferent when their
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“response to the harassment or lack thereof is clearly unreasonable in light of the
known circumstances.” Davis v. Monroe Cnty. Bd. Of Educ., 526 U.S. 629, 648
(1999). As the incidents reported by Ms. Davis constituted the universe of known
circumstances with regard to Principal Fulford, we find that her response was not
clearly unreasonable.
Principal Fulford made time to hear from Ms. Davis as soon as she was
ready to report Mr. Moody’s alleged misconduct, offered to help her file a formal
complaint, and immediately told Mr. Moody that he was forbidden from entering
Ms. Davis’ classroom unless others were present. Principal Fulford’s response was
immediate, tailored, and effective. She fashioned a solution to eliminate Mr.
Moody’s inappropriate advances, while respecting Ms. Davis’ desire to resolve the
issue privately. Never again did Principal Fulford receive a complaint concerning
Mr. Moody. But in case she did, Principal Fulford dutifully recorded the substance
of Ms. Davis’ complaint and placed the record in her personal file for further
reference if required in the future. Any omission in Principal Fulford’s response
“cannot be said to represent a decision by the school board not to remedy the
violation,” Doe, 604 F.3d at 1260 (internal quotation marks omitted), and no
reasonable jury could find otherwise. Thus, the first reported instance of sexual
harassment does not provide a basis for holding Daleville City liable under Title
IX.
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C. The Second Complaint (2006) Against Mr. Moody - Heather Nichols
In 2006, Heather Nichols and Mr. Moody worked together at Windham
Elementary School under the supervision of Principal Christopher Mitten.
Principal Fulford, who dealt with the only prior reported allegations of sexual
harassment leveled against Mr. Moody, had left years before.
In early March of 2006, Ms. Nichols notified Principal Mitten by email that
Mr. Moody had inappropriately touched her buttocks on two prior occasions. Mr.
Moody denied any wrongdoing. Principal Mitten spoke with Ms. Nichols
immediately thereafter to confirm the allegations in her email and asked whether
any witnesses were present at either of the alleged incidents. Ms. Nichols
informed him that Becky Calhoun was in the room when Mr. Moody touched her
the second time. Principal Mitten thanked Ms. Nichols for her time, instructed her
that the allegations would be thoroughly investigated, and sought out Ms. Calhoun.
Principal Mitten asked Ms. Calhoun if she had observed the incident of
alleged sexual harassment reported by Ms. Nichols. She indicated that she had not,
but that Ms. Nichols informed her of the incident immediately thereafter. Principal
Mitten told Ms. Calhoun that all information pertaining to the incident and
investigation was confidential and thanked her for her assistance. He then
contacted his supervisor, Superintendent Andrew Kelley, to verify the policies and
procedures to be followed given Ms. Nichols’ allegations.
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After conferring with Superintendent Kelley, Principal Mitten told Ms.
Nichols that her allegations were being taken seriously and that, in order to aid the
investigation, her recollections of the incident needed to be reduced to writing and
submitted to the central office. Ms. Nichols did as she was asked, submitting a
written complaint to Principal Mitten, who in turn delivered it to Superintendent
Kelley. Finally, Principal Mitten drafted a letter memorializing the incident and
his actions in response thereto.
i. Principal Mitten
Principal Mitten had actual notice of the possibility that Mr. Moody would
sexually harass another teacher or a student like KB. Ms. Nichols reported two
occasions of sexual harassment involving the inappropriate touching of her
buttocks. She did so first by email and later during a meeting initiated by Principal
Mitten. Principal Mitten was therefore well-aware of the detailed allegations of
sexual harassment leveled by Ms. Nichols, and is an appropriate person under Title
IX.
Though Principal Mitten is an appropriate person who had actual notice of
the possibility of Mr. Moody’s act of sexual harassment against KB, he did not act
with deliberate indifference in the face of this known risk. As soon as Principal
Mitten received Ms. Nichols’ e-mail notifying him of the incident, his investigation
began. He promptly interviewed both Ms. Nichols and Ms. Calhoun, the two
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persons most likely to possess information about the incident other than the alleged
perpetrator, and sought counsel from his own supervisor. Finally, he
recommended that Ms. Nichols put her allegations to writing in order to file a
formal complaint, and delivered her complaint to the superintendent’s office
himself.
School district officials are deliberately indifferent under Title IX when their
“response to the harassment or lack thereof is clearly unreasonable in light of the
known circumstances.” Davis, 526 U.S. at 648. We cannot say that Principal
Mitten’s response to Ms. Nichols’ allegations of sexual harassment was clearly
unreasonable. Thus, the school district cannot be held liable under Title IX based
upon his conduct. See Gebser, 524 U.S. at 290.
ii. Superintendent Kelley
Superintendent Kelley also had actual notice of the possibility of KB’s
sexual harassment. Principal Mitten and Ms. Nichols both informed
Superintendent Kelley of Ms. Nichols’ allegations against Mr. Moody. Like
Principal Mitten, Superintendent Kelley is an appropriate person under Title IX.
The “known circumstances,” as far as Superintendent Kelley was concerned,
consisted of the formal complaint by Ms. Nichols outlining her allegations that Mr.
Moody had twice inappropriately touched her buttocks. Davis, 526 U.S. at 648.
Superintendent Kelley did not have actual knowledge of Ms. Davis’ earlier
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allegations against Mr. Moody, which had been reported to a different principal
more than a decade earlier. We have made clear before, and reiterate today, that the
relevant response must be judged in relation only to the known circumstances.
Superintendent Kelley’s actions in response to the information received from
Principal Mitten and Ms. Nichols were not “clearly unreasonable in light of known
circumstances,” and thus, did not exhibit deliberate indifference. Id. To begin
with, Mr. Moody denied all wrongdoing. He claimed that any contact between he
and Ms. Nichols was inadvertent. And, to make matters more difficult, there were
no witnesses to confirm or deny Ms. Nichols’ allegations, making it a classic case
of “she said, he said.” With nothing to corroborate either side of the story and no
known history of sexual harassment, Superintendent Kelley’s actions in response
to this single set of allegations were appropriately tailored.
Superintendent Kelley reviewed Principal Mitten’s investigatory report,
considered Ms. Nichols’ formal complaint, consulted the School Board’s legal
counsel, and promptly contacted Mr. Moody. By written correspondence,
Superintendent Kelley notified Mr. Moody of the allegations against him,
instructed him to carefully coordinate his movements when in close proximity with
others, and provided him a copy of the School District’s sexual harassment policy.
Superintendent Kelley not only hand delivered his letter to Mr. Moody, but read it
aloud to him, and further instructed him to avoid contact with Ms. Nichols. In
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addition, Superintendent Kelley kept Ms. Nichols informed throughout the process.
We cannot say that Superintendent Kelley’s response to this single set of
uncorroborated allegations against an employee with no known history of sexual
harassment (as far as Superintendent Kelley was concerned) was clearly
unreasonable, nor could any reasonable jury. The School Board cannot be held
liable under Title IX based on the actions of Superintendent Kelley.
D. The Third Complaint Against Mr. Moody - Undressing Looks
Mr. Moody, was later transferred to Daleville Middle School. During Mr.
Moody’s time at Daleville Middle, ES asserts that a number of individuals
complained to Principal McDuffie of “undressing” looks by Mr. Moody. Principal
McDuffie acknowledged as much in his deposition and at the arbitration. Principal
McDuffie, however, did not have actual knowledge of the prior allegations lodged
against Mr. Moody by Ms. Davis and Ms. Nichols.
ES alleges that after students and teachers informed Principal McDuffie of
Mr. Moody’s improper looks, Mr. Moody inappropriately touched KB’s buttocks.
The district court found that ES has not submitted sufficient evidence of actual
notice or deliberate indifference, and we agree.
Assuming ES could prove that numerous students and teachers notified
Principal McDuffie that Mr. Moody was continuously “undressing them with his
eyes,” this is insufficient to alert Principal McDuffie of the possibility of Mr.
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Moody’s alleged sexual assault of KB. As the district court noted, both this Court
and the Supreme Court have recognized that “some prior allegations of harassment
may be sufficiently minimal and far afield from the conduct underlying the
plaintiff's Title IX claim that they would not alert a school district official of the
risk of a Title IX plaintiff's sexual harassment.” Doe, 604 F.3d at 1258 (citing
Gebser, 524 U.S. at 291).
In Davis, for example, we held that “perceived imminent” touching was
insufficient to alert school district officials of the potential sexual molestation of
the plaintiffs. See 233 F.3d at 1373. In Gebser, the Supreme Court held that a
teacher’s inappropriate and sexually suggestive comments during class were
“plainly insufficient” to alert the principal to the possibility of a sexual relationship
between the teacher and a student. See 524 U.S. at 291. In both cases, the actions
and events alleged to have provided school district officials with actual notice of
the possibility of sexual assault were more severe in nature and closer in kind to
the plaintiff’s Title IX claim than here. Each was arguably a better predictor of the
possibility of a future sexual assault than strange looks or prolonged stares, and yet
they were deemed insufficient to provide actual notice. Accordingly, Mr. Moody’s
“undressing looks” also failed to provide Principal Mitten with actual notice of the
possibility that he might commit a sexual assault on a student like KB.
E. The Fourth Complaint Against Mr. Moody - KB
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As the district court noted, at the very least, the School Board had actual
notice of Mr. Moody sexually harassing/assaulting KB. The School Board’s
actions in response to this incident, if clearly unreasonable, could constitute
deliberate indifference. See Davis, 526 U.S. at 648.
KB missed school due to her fear of Mr. Moody and had to live with that
lingering fear both at school and in her community. Were the School Board’s
response to the assault deficient in any way, a reasonable jury could conclude that
those deficiencies caused KB’s subsequent emotional trauma. See Doe, 604 F.3d
at 1262. The School Board’s response, however, was not clearly unreasonable in
light of known circumstances. After reviewing each instance of sexual harassment
reported to School Board officials and their actions in response to those reports, we
affirm the districts court’s grant of summary judgment in its favor.
As the district court explained “the undisputed evidence shows the response
to the incident with KB was swift and effective.” Doc. 44 at 8. Upon learning of
KB’s allegations against Mr. Moody, Principal McDuffie immediately restricted
his movements. Mr. Moody violated those restrictions, and within one week
Superintendent Kelley recommended Mr. Moody’s termination. Less than two
months later, the School Board fired Mr. Moody.
II. Conclusion
The district court’s grant of summary judgment is affirmed.
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AFFIRMED.
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